Free Speech As A Barrier to Trade? The Latest Anti-BDS Scheme

"At heart, the neoliberal project is fundamentally about limiting democracy. For decades now, global-justice activists have lamented the way in which unelected international financial institutions have eroded the popular will, undoing labor, environmental, and safety regulations. In Europe, we are witnessing the confrontation between mass movements and democratically elected governments and centralized financial powers that seek to impose crippling austerity measures, privatize key public assets, and dismantle important social programs. It should therefore come as no surprise that those who are opposed to Palestinian human rights and seek to repress the growing BDS movement, which aims for the full realization of fundamental human rights protected by international law, have strategically decided to cloak themselves in the language of neoliberalism, unrestrained trade and commerce, and economic rationalism."

The bill cites its raison d’être not as a political defense of Israel, but as concern over “politically motivated actions” that would constitute barriers of trade in violation of the General Agreement on Trades and Tariffs (GATT).

It would tie U.S. trade policy, most notably the pending trade deal with the European Union, to opposing BDS. It would require the President to deliver a report on BDS to Congress within 180 days of the bill’s passage and make BDS “a topic of discussion at the U.S.-Israel Joint Economic Development Group.” The bill would also amend the Securities Exchange Act of 1934 to force foreign companies publicly traded in the United States to include in their quarterly report whether they have engaged in the BDS movement, been asked to engage in the BDS movement by a foreign government, or have been the target of BDS campaigns. It would also allow states to examine “a company’s promotion or compliance with unsanctioned boycotts, divestment from, or sanctions against Israel as part of its consideration in awarding grants and contracts,” and it “supports the divestment of State assets from companies that support or promote actions to boycott, divest from, or sanction Israel.”

Human-rights and social-justice advocates have long defended state and local governments’ right to make investment or business decisions that excluded companies that were complicit in human-rights abuses or other practices seemingly contrary to the conscience of their citizens. Opponents of boycotts and divestment measures have long attempted to employ legal challenges to undo the popular will and force those governments to spend public money on causes they find morally reprehensible. The worst blow came from the Supreme Court in 2000, when it unanimously struck down the Massachusetts Burma Act, in Crosby v. National Trade Council. It decided that a Massachusetts law that limited the state from purchasing services from companies that did business with Burma was unconstitutional. The Court ruled that this democratic decision about how to spend state money undermined the federal government’s exclusive right to conduct foreign policy. It held that Congress, by passing less stringent restrictions on business with Burma, had “pre-empted” any state laws regulating state contracts with companies doing business with the Rangoon dictatorship. When a state or local law deals with an exclusively federal power, any contradictory federal laws supersede them. Foreign policy is a federal power.

The Roskam-Vargas bill’s provision on “grants and contracts” is a clear and deliberate choice to let states boycott or divest from companies that are viewed as complying with BDS. While the bill as a whole mainly targets European nations, this provision, by encouraging state governments to take retributive economic actions against companies complying with BDS, could affect domestic BDS efforts. It also exposes the bill’s pretense—shielding commercial decisions from politically motivated actions—as a mere pretext.

“Politically Motivated Actions”

Make no mistake about it: The Roskam-Vargas bill is more about crushing the BDS movement than it is about efficient trade policy. Roskam’s online press release includes a letter of support from Michael Oren, the former Israeli ambassador to the United States (and former United States citizen). Oren writes that he is “honored to read your proposed bill placing the Congress squarely behind Israel in its struggle against Boycott, Divestment, and Sanctions.” He also notes that he has worked closely with both Roskam and Vargas since 2013, when he published an op-ed calling on Congress to infringe on the American Studies Association’s freedom to support boycotting Israeli state institutions complicit in violation of Palestinian human rights by coming up with anti-BDS legislation. He titled that op-ed “Will Congress Stand Up for Academic Freedom?” (He appears to have renounced his sense of irony along with the U.S. citizenship he gave up to become an Israeli ambassador.)

Oren is not the only one involved with this bill that has been plotting for some time. The American Israel Public Affairs Committee (AIPAC), which supports the bill but has not taken credit for it, apparently spent months working on drafting it. AIPAC has released a statement praising it as “an effort to suppress Europe’s ‘commercial discrimination’ through the BDS movement.” The common theme is that the bill’s primary purpose is suppressing the human-rights advocates of the BDS movement, and preserving the sanctity of global commerce is a mere secondary concern.

Riding on the Tails of Defeat

The claim that “politically motivated” boycotts, divestments, and sanctions are a barrier to trade is an effort to succeed where previous attempts to use legislation to blunt the BDS movement failed. Following the American Studies Association’s endorsement of BDS, opponents of Palestinian human rights fumbled to find a legislative remedy to the pesky political speech of others. When the ASA resolution first passed, university presidents, newspaper editorial boards, and politicians lined up to condemn both the ASA and the BDS movement. Anti-BDS groups tried to push through bills in several state legislatures and Congress that would cut funding for state colleges if they paid for membership or participation in academic conferences of academic associations that had supported BDS.

The backlash against the ASA was soon dwarfed by the backlash against these bills and their supporters. While the first of these anti-BDS bills passed through the New York State Senate before many people even realized it existed, BDS supporters quickly mobilized to fight against them. They were joined by and formed coalitions with a broad range of civil-libertarian organizations. Even groups and newspaper that had loudly spoken out against the ASA quickly mobilized to defeat these bills.

The most surprising development was the splintering of the organized anti-BDS camp. In Maryland, where perhaps the most perniciously anti-free speech bill was contemplated, there was a schism between the Baltimore Jewish Council, which supported the bill, and the Jewish Community Relations Council of Greater Washington, which opposed it as abridging free speech and potentially harming “pro-Israel” speech. The two groups publicly testified on opposite sides of the issue, and the bill’s main sponsor launched into a bizarre series of public attacks against the Jewish Community Relations Council, both during his own testimony on the bill and in the media.

The most telling defection, though, came from AIPAC and the Anti-Defamation League, perhaps the two most visible national organizations in the organized anti-BDS movement. They both refused to support the bills in question on the grounds they were unconstitutional. What started as seemingly unstoppable bills died rather unceremonious deaths. However, anyone who thought that this meant that AIPAC was softening its opposition to BDS would have been wrong. The group has now emerged with a carefully crafted bill meant to accomplish internationally what past efforts have failed to do domestically.

“Boycotts, How Maliciously Unfair.”

The trade angle may seem like a novel move by BDS opponents to use the world’s increasingly hegemonic undemocratic financial institutions to get their way, it mirrors the tactics opponents of social justice have used throughout recent history. The appeal to a semi-religious set of economic principles that cannot be profaned by politics, human rights, or social justice was a tactic deployed against the civil-rights movement.

Boycotts were one of the many tactics used by civil-rights activists seeking to undermine the Jim Crow racial apartheid of the South, and were often banned. The 1982 Supreme Court case NAACP v. Claiborne Hardware Co. overturned a civil verdict that merchants affected by a civil-rights boycott in Mississippi had won against the NAACP. The merchants alleged that the boycott constituted “malicious interference” with their businesses, a violation of state law prohibiting secondary boycotts, and an “unfair labor practice” under the state’s antitrust law. They were rewarded damages to compensate for profits they’d allegedly lost due to the boycott.

While the Supreme Court stated that states had the broad power to regulate economic activity, including secondary boycotts and picketing by labor unions, in this case it held that the nonviolent, political boycott waged by the NAACP was protected by the First Amendment, and thus no civil liability could be imposed on its participants.

From “Civil Rights” to Commerce?

Using the legislative process to silence your opponents is often a tough sell, as demonstrated by the public outcry against the first wave of anti-BDS bills. The organized anti-BDS movement has in the past cloaked itself in the language of “free speech” and “civil rights.” Now it has chosen free trade as its new mantra, wrapping itself in an all-too-familiar appeal to neoliberalism.

At heart, the neoliberal project is fundamentally about limiting democracy. For decades now, global-justice activists have lamented the way in which unelected international financial institutions have eroded the popular will, undoing labor, environmental, and safety regulations. In Europe, we are witnessing the confrontation between mass movements and democratically elected governments and centralized financial powers that seek to impose crippling austerity measures, privatize key public assets, and dismantle important social programs. It should therefore come as no surprise that those who are opposed to Palestinian human rights and seek to repress the growing BDS movement, which aims for the full realization of fundamental human rights protected by international law, have strategically decided to cloak themselves in the language of neoliberalism, unrestrained trade and commerce, and economic rationalism.

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